XXX v. State Of Kerala, Represented By Public Prosecutor
2024-07-30
A.BADHARUDEEN
body2024
DigiLaw.ai
ORDER : A. Badharudeen, J. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973 seeking for the following reliefs: “1. To call for the original of Annexure 5 final report in Crime No.490/2021 of Nattukal Police Station, Palakkad now pending as C.P.No.38/2022 before the JFMC, Mannarkad and all records connected to it and to quash the same as illegal and unjustifiable. 2. To effectively mould the remedy and grant such other and further relief/reliefs as the petitioners may pray for from time to time and which this Honourable Court deems fit and proper to grant in the interests of justice.” 2. Heard the learned counsel for the petitioner, learned counsel for the defacto complainant and the learned Public Prosecutor. I have perused the records. 3. In this matter, prosecution alleges commission of offence punishable under Section 511 read with Section 376 of the Indian Penal Code, 1860. Originally crime was registered as on 14.10.2021 in relation to an occurrence of the year 2007 when the victim girl who was aged 18 years, divulged sexual assault occurred at the age of 5 years before a doctor for the offence punishable under Section 354 IPC. During investigation, the Investigating Officer filed report stating that the offence made out is one under Section 511 read with Section 376 IPC. Accordingly Section 354 IPC was deleted and final report filed alleging commission of offence under Sections 376 read with 511 of IPC. 4. While canvassing quashment of the proceedings, the learned counsel for the petitioner vehemently canvassed a long delay of 14 years, 9 months 23 days (5411 days) in lodging the FIR and also vehemently argued that this Crime was registered after long delay when the father of the defacto complainant/victim was dissatisfied with the allotment of family property by the petitioner's wife's mother, who is the sister of the father of the victim, by granting 10 cents of land/property to her 3 sons and 2 daughters including the father of the defacto complainant/victim. Accordingly, it is submitted that the entire case is foisted at a much belated stage and the delay itself is a reason to disbelieve the allegation in toto and to quash the proceedings. 5.
Accordingly, it is submitted that the entire case is foisted at a much belated stage and the delay itself is a reason to disbelieve the allegation in toto and to quash the proceedings. 5. Quashment sought for is zealously opposed by the learned counsel for the de facto complainant and he read out the FIS pointing out the guilt of the accused and also submitted that the delay has been properly explained. According to the learned counsel, the occurrence was divulged when the de facto complainant felt a mental condition with insomnia and she met the doctor for the said purpose. 6. The learned Public Prosecutor supported the version of the learned counsel for the de facto complainant and submitted that going by the prosecution materials, prima facie case is made out. Therefore, quashment sought for is liable to fail. 7. In this matter, originally, FIR was registered on 14.10.2021 on the basis of the statement given by the defacto complainant/victim. As per the FIS, it has been recited that during 2007, when the father of the defacto complainant was in Gulf and the defacto complainant was aged 5 years, her mother went to hospital. There was marriage of the brother of the father of the defacto complainant on 27.12.2007. Two, three days thereafter, mother again went to hospital along with her sister after entrusting the defacto complainant/victim at the hands of the grandmother. Thereafter, she was entrusted to the care of her father's sister. The FIS recites further that she went to sleep in the afternoon when staying at the house of the father's sister. The accused, who is husband of her father's sister mounted on her, pressed on her vital parts and put his penis in between her thighs. 8. It is to be noted that even though such an occurrence happened at the age of 5, the victim did not disclose the incident to anybody for a period of 5411 days. The de facto complainant also has no allegation apart from the solitary incident disclosed in the FIS. Although the learned counsel for the victim argued that the delay has been properly explained, the explanation for the delay is that she did not disclose the occurrence, since the accused was the husband of her aunt and she divulged the occurrence, since the accused threatened her on 09.10.2021.
Although the learned counsel for the victim argued that the delay has been properly explained, the explanation for the delay is that she did not disclose the occurrence, since the accused was the husband of her aunt and she divulged the occurrence, since the accused threatened her on 09.10.2021. Thus immediate cause for disclosure of this occurrence is the threat at the instance of the petitioner on 09.10.2021. 9. Petitioner herein is the husband of the victim's father's sister. According to the learned counsel for the petitioner, allotment of shares as argued is the reason for the immediate registration of this crime, so as to put him under pressure to settle the dispute and to give up the property allotted in his favour, though those aspects not substantiated by any materials. 10. The question emerges is, how far the prosecution case is believable prima facie, when crime was registered after a long delay of 5411 days? It is not in dispute that reasonable delay in lodging an FIR, if explained properly, the same alone is not a reason to disbelieve the prosecution case. Here the reason for the delay according to the defacto complainant is that the occurrence was not disclosed since the accused was the husband of the aunt of the victim. At the same time, the immediate reason for lodging the FIS is threat at the instance of the accused on 19.10.2021. In fact the said explanation for the long delay of 5411 days in lodging the FIS is not at all satisfactory. In such cases, long delay would be fatal to the prosecution and the same is a good reason to invoke power of this Court under Section 482 of Cr.P.C. 11. It is stunning, rather astonishing, to bear in mind that misuse of stringent provisions under the POCSO Act with ulterior motives to devastate rivalry is not uncommon. Rampant registration of cases of this nature also perceptible. When cases are being registered after a long delay alleging serious offences, unless the long delay is not properly explained, the same itself is a reason to doubt the prosecution case in toto. The case at hand seems to be one of the said kind where prosecution has been launched after a long delay of 15 years without any sufficient explanation for the long delay. 12. In the decision in Vineet Kumar & Ors.
The case at hand seems to be one of the said kind where prosecution has been launched after a long delay of 15 years without any sufficient explanation for the long delay. 12. In the decision in Vineet Kumar & Ors. v. State of U.P & anr., reported in [2017 KHC 6274 : AIR 2017 SC 1884 : 2017 (13) SCC 369 ], the Apex Court held in paragraph 39 that, inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal, [ AIR 1960 SC 866 ]. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal (supra), which is to the following effect: “(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 13.
Similarly, in another decision in Mahmood Ali v. State of U.P. reported in [2023 KHC 7029 : 2023 KHC OnLine 7029 : 2023 LiveLaw (SC) 613 : 2023 KLT OnLine 1751 : AIR 2023 SC 3709 : AIR OnLine 2023 SC 602 : 2023 CriLJ 3896], the Apex Court while considering the power under Section 482 Cr.P.C, in paragraph 12 held that, ‘whenever an accused comes before the Court invoking either the inherent powers under S.482 of the Code of Criminal Procedure or extraordinary jurisdiction under Art.226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under S.482 of the Cr.P.C. or Art.226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation / registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.’ 14.
Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.’ 14. Therefore, the legal position is clear that quashment of criminal proceedings can be resorted to when the prosecution materials do not constitute materials to attract the offence alleged to be committed and the allegations are raised with a long delay without reasonable explanation to the same. Similarly, the Court owes a duty to look into the other attending circumstances, over and above the averments, to see whether there are materials to indicate that a criminal proceeding is manifestly attended with mala fide intention and instituted maliciously with ulterior motives. Once the said fact is established, the same is a good reason to quash the criminal proceedings. 15. Viewing the facts of the case, within the spectrum as discussed, whereby the crime was registered after long delay of 5411 days, I am inclined to quash the proceedings. In the result, this petition stands allowed and all further proceedings in CP No.38/2022 pending before the Judicial First Class Magistrate Court, Mannarkad arising out of Crime No.490/2021 of Nattukal Police Station, Palakkad against the petitioner stand quashed.